Summary of the Report on Copyright and Digital Distance Education

Copyright Office Issues Report on Distance Education

On May 25 the Register of Copyrights, Marybeth Peters, released the "Report on Copyright and Digital Distance Education" as required by a provision of the Digital Millennium Copyright Act of last fall. The report (169 pages plus appendices) is available on the Copyright Office Web site at http://www.loc.gov/copyright/cpypub/de_rprt.pdf.

The report is remarkably comprehensive, given the short 6-months time frame imposed by Congress, and the recommendations seem well balanced in recommending an updating of current copyright law exemptions for distance education, but with safeguards to respond to proprietor concerns. The report's statutory recommendations are descriptions of recommended changes, rather than legislative language. Full evaluation of the impact of such changes would obviously depend on the specific language and context. Further, some recommendations seem to depend on, or await the widespread availability of, certain technological protections that the report itself admits are not yet in widespread use, or would only be available to those educational institutions able to use such new technological protections.

The report provides a useful overview of the nature of distance education, describes current licensing practices in digital distance education, describes the status of technologies relating to the delivery and protection of distance education materials, analyzes the application of current copyright law to digital distance education activities, discusses prior initiatives addressing copyright and digital distance education, and examines the question of whether the law should be changed, first summarizing the views of interested parties and then providing the Copyright Office's analysis and recommendations.

In its discussion of whether the law should be changed, the report notes that educators and librarians believe that a change in the law is required to optimize the quality and availability of forms of distance education that take full advantage of today's technological capabilities. Members of this community feel that fair use is uncertain in its application to the digital environment, that current exemptions are outmoded and do not extend to the full range of activities involved in digital distance education, and that licensing for such uses is not working well. The report also notes that copyright owners do not believe statutory amendments are necessary or advisable, that digital distance education is flourishing under current law, that expanding exemptions would harm primary and secondary markets, and that licensing fees should be regarding as a cost of distance education.

The Copyright Office itself concluded that some policy recalibration may be appropriate at this point, and offered several recommendations to Congress. These may be summarized as follows:

Clarify that the term "transmission" in section 110(2) covers transmissions by digital means as well as analog. Do this through legislative history rather than by statutory amendment.

Expand coverage of rights to the extent technologically necessary. Such an amendment should include the rights of reproduction and/or distribution only to the extent technologically required in order to transmit the performance or display authorized by the exemption. In particular, the ability to make reproductions should be limited to transient copies created as part of the automatic technical process of the digital transmission of an exempted performance or display.

Emphasize the concept of mediated instruction. The key is to ensure that the performance or display is analogous to the type of performance or display that would take place in a live classroom setting. In other words, it is a use of the work as an integral part of the class experience, controlled by the instructor, rather than as supplemental or background information to be experienced independently.

Eliminate the requirement of a physical classroom, but substitute the requirement of official enrollment.

Add new safeguards to counteract new risks. The safeguards recommended include several adapted from provisions contained in Title II of the Digital Millennium Copyright Act. First, any transient copies permitted under the exemption should be retained for no longer than reasonably necessary to complete the transmission. Second, those seeking to invoke the exemption should be required to institute policies regarding copyright, to provide informational materials to faculty, students and relevant staff, and to provide notice to students that materials used in connection with the course may be subject to copyright protection. Third, when works are transmitted in digital form, technological measures should be in place to control unauthorized uses. Such measures should protect against both unauthorized access and unauthorized dissemination after access has been obtained. The law should impose an obligation not to intentionally interfere with technological protections applied by copyright owners. "Access control measures, such as passwords, are already in widespread use. Technologies that control post-access uses for all types of works are not yet widely available. The broadening of section 110(2) to cover digital transmissions should be tied to the ability to deploy such measures in addition to access control. If copyrighted works are to be placed on networks, and exposed to the resulting risks, it is appropriate to condition the availability of the exemption on the application of adequate technological protections."

Maintain existing standards of eligibility -- that is, that the exemption is available only to a governmental body or nonprofit education institution, as in current law. The report notes that there was extensive debate over the appropriateness of retaining the "nonprofit" element in the context of today's digital distance education.

Expand categories of works covered. Section 110(2) could be amended to allow performances of categories in addition to the current nondramatic literary and musical works, but not of entire works, only the performance of reasonable and limited portions of these additional works. It may be advisable to exclude from the added categories those works that are produced primarily for instructional use.

Require the performance or display to be made from a lawful copy, if the categories of works covered by section 110(2) are expanded to include dramatic works, audiovisual works and/or sound recordings.

Add a new ephemeral recording exemption. Adding a new subsection to section 112 would permit an educator to upload a copyrighted work onto a server, to be subsequently transmitted under the conditions set out in section 110(2) to students enrolled in the course, subject to certain limits similar to those set out in other subsections of section 112.

The Copyright Office also made recommendations concerning clarification of fair use, licensing issues, and international considerations.

If any legislative action is taken with regard to distance education, the report strongly recommends that legislative history explicitly address certain fair use principles:

Confirm that the fair use doctrine is technology neutral and applies to activities in the digital environment.

Provide some examples of digital uses that are likely to qualify as fair.

Explain that the lack of established guidelines for any particular type of use does not mean that fair use is inapplicable.

Clarify the relationship of guidelines to fair use and other statutory defenses.

Explain that guidelines are a safe harbor rather than a ceiling on what is permitted, and that guidelines should not be deferred to as absolute codes of conduct without leeway for reasonable activities that they may not adequately accommodate.

The report suggests revisiting the licensing issue in two or three years after enactment of any amendment. If problems persist, then Congress could consider the approaches of other countries such as Canada. Or Congress could seek to establish some form of legislative incentives for the development of more effective and acceptable licensing mechanisms.

The Copyright Office believes its recommendations are fully consistent with the standards established by the Berne Convention and the TRIPs Agreement for limitations or exceptions to the exclusive rights of copyright owners. The report concludes with the observation that the balance struck in U.S. law will have an importance beyond our borders, both through its potential application abroad and as a model for other countries examining the issue.

Senate Judiciary Committee Holds Hearing on Distance Education Report

On the morning of the report's release, May 25, the Senate Judiciary Committee held a hearing on the Copyright Office "Report on Copyright and Digital Distance Education." The only witness was Marybeth Peters, Register of Copyrights. Her testimony summarized the report.

Chairman Orrin Hatch (R-UT), in his opening statement, highlighted the importance of distance education to his home state of Utah, and recalled a distance education exposition and copyright round table at the Utah Education Network where he hosted the Register of Copyrights. Senator Hatch asked the Register later about the impact of this visit on the study, and she said it had been very helpful to all involved.

Ranking minority member Patrick Leahy (D-VT) also noted a visit by the Register to Champlain College in Vermont during the course of the study. Leahy quoted the report as saying that by 2002, the number of students taking distance courses will represent 15 percent of all higher education students.

The hearing was also attended by Sens. Charles Grassley (R-IA) and John Ashcroft (R-MO). All Senators were very appreciative of the major work done by the Copyright Office and indicated they would give the recommendations close attention.